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This report into the legal needs of homeless people explores the capacity of homeless people in NSW to obtain legal assistance; to participate effectively in the legal system; and to obtain assistance in legal processes from non-legal advocacy and support agencies. It also examines the role of non-legal support workers and agencies in assisting homeless people to identify and address their legal issues. It is based on a review of existing literature and consultations with legal and non-legal service providers and homeless people themselves....

Executive Summary

Legal needs of homeless people (Chapters 1 and 2)

The Law and Justice Foundation of NSW (the Foundation) has undertaken a study on the legal needs of homeless people in New South Wales (NSW) as part of its Access to Justice and Legal Needs research program.1 This report on the study explores the capacity of homeless people in NSW to:

participate effectively in the legal system (including courts and tribunals)

obtain assistance in legal processes from non-legal advocacy and support agencies.

This study also examines the role of non-legal support workers and agencies in assisting homeless people to identify and address their legal issues.

‘Homelessness’ defined

While there is considerable debate about how ‘homelessness’ should be defined, this study uses a definition articulated by Chamberlain and Mackenzie and used by the Australian Bureau of Statistics (ABS).2 It describes three categories of homelessness:

primary homelessness — people without conventional accommodation, such as those living on the streets, sleeping in parks, sheds or humpies, squatting in derelict buildings, or using cars or railway carriages for temporary shelter

Secondary homelessness — people who move frequently from one form of temporary shelter to another, including people using emergency accommodation (such as hostels for the homeless or night shelters); teenagers staying in youth refuges; women and children escaping domestic violence (staying in women’s refuges); people residing temporarily with other families (because they have no accommodation of their own) and those using boarding houses on an occasional or intermittent basis

Tertiary homelessness — people who live in boarding houses on a medium- to long-term basis. Residents of private boarding houses do not have a separate bedroom and living room; they do not have kitchen and bathroom facilities of their own; their accommodation is not self-contained; and they do not have security of tenure provided by a lease.

One group of people not enumerated as ‘homeless’ by the ABS, but who are covered by this report, are those described by Chamberlain and Mackenzie as ‘marginal residents of caravan parks’. These are “people who were renting their caravan, but no one at the dwelling had full-time employment and all persons were at their ‘usual address’”.3 We include marginal residents of caravan parks as part of the homeless population because caravan parks are used as alternatives to boarding houses outside capital cities (see Chapter 1 for more detail). Regional and rural service providers may also send people to caravan parks when there is no emergency accommodation in their area.

Methodology

Because this study is exploratory in nature, qualitative methods of data collection have been employed. Focus groups and semi-structured face-to-face and telephone interviews were used to gather the insights of more than 100 service providers and other stakeholders. Semi-structured face-to-face interviews were also used to gather the insights of 30 homeless people. Information was also drawn from recent and relevant literature, policy documents and statistical data on homelessness and service provision to homeless people (i.e. Supported Accommodation Assistance Program (SAAP4 and Census data)). Case studies were also taken from the literature and provided by service providers and stakeholders. The sources of information presented in this summary may be found in the relevant chapters of the report.

Homelessness on NSW (Chapter 3)

Census data indicate that, in August 2001, there were an estimated 33 557 homeless people in NSW. These people included men, women, teenagers and younger children living temporarily with family and friends, in boarding houses, in caravan parks, in SAAP accommodation and on the street. Approximately half of these people were living in the Greater Sydney area. While the ‘city core’ of Sydney (the ABS statistical subdivision of Inner Sydney5) had one of the highest rates of homelessness in NSW, only 14% of the homeless in NSW were living in this area. A further 13% were living in the ‘inner city ring’ (which includes the ABS statistical subdivisions of Lower Northern Sydney, Eastern Suburbs, Inner Western Sydney and Central Western Sydney). There were also pockets of very high rates of homelessness in coastal NSW, particularly in the north of the State. Census data further indicated:

Excluding marginal caravan park residents, an estimated 43% of homeless people in NSW are under the age of 25. Young people tend to be fairly transient, moving between refuges, transitional housing and friends and families.

Forty per cent of the homeless in NSW are female, with the proportion of women highest in the younger age groups. Data also suggest there are increasing numbers of families experiencing homelessness. Homeless women and families tend to be situated with family and friends, but are also found living in caravan parks, SAAP services, boarding houses and on the street.

Consultations undertaken for this study, together with studies into homelessness in Australia, also indicate:

Indigenous people, people recently released from prison, people leaving state care and transgender people are disproportionately represented in the homeless population.

Mental illness, abuse of alcohol and other drugs and histories of trauma and abuse are common in some sectors of the homeless population, particularly street-based homeless people.

Overwhelmingly, homeless people are very poor, unemployed and struggle to maintain social security benefits or other income.

It is difficult to separate legal issues from these complex needs and issues.

Legal issues facing homeless people (Chapter 4)

Homeless people tend to have a range of legal issues that, when unaddressed, can prolong homelessness. The types of legal issues faced vary within the homeless population, as well as for individuals as they move through homelessness. As people become homeless common legal issues are family law and domestic violence, together with general debt- and housing-related legal issues. Housing issues include eviction and debt arising from rent arrears and damage to property. Discrimination in housing and employment were also identified in this study as problems for homeless people, particularly Aboriginal people and transgender people.

Once people have become entrenched in homelessness and are more visible to law enforcement agencies, crime and fines become more prominent issues. People living at primary levels of homelessness are also particularly vulnerable to being victims of crime. Together with people who are transient, this group also has difficulties complying with social security requirements because of chaotic lives and lack of a permanent address.

Laws, policies and legal processes that directly impact on homeless people in NSW include:

The use and structure of residential tenancy databases (RTDs). Landlords or real estate agents can place people on RTDs and essentially ‘blacklist’ them, whereby other landlords will not rent out properties to listed tenants. Unregulated until recently, numerous stakeholders noted the impact of RTDs on homeless people trying to re-access the rental market. New regulations in NSW allow some protection against any arbitrary and unfair use by landlords and real estate agents.

The lack of tenancy protection for boarders and lodgers and limited protection to marginal residents of caravan parks under the Residential Tenancies Act 1987 (NSW), leaving these groups vulnerable to arbitrary eviction and unsanitary and dangerous living conditions. This is exacerbated by the lack of alternative housing options when people lose their accommodation. People are reported to not complain about substandard accommodation, because they have nowhere else to live if they are evicted as a result of the complaint.

The recent introduction of renewable tenancy agreements and acceptable behaviour agreements, which enable the Department of Housing to target people exhibiting ‘anti-social’ behaviour. The potential impact of this legislation on public housing tenants with complex needs (e.g. people with a mental illness or families with children with behavioural or other disabilities) must be monitored.

The fine processing system. Due to their public visibility, many homeless people, particularly young homeless people, may receive multiple fines for offences such as travelling without a valid rail ticket and offensive behaviour. People have difficulty negotiating the multi-agency process (including the Infringement Processing Bureau and the State Debt Recovery Office) to pay these fines. People can then accrue significant debts, which impacts on their ability to exit homelessness. The link between non-traffic related fines (e.g. littering, transport fines) and the suspension of drivers’ licences and/or the cancellation of car registration can also lead to further offending.

At present, exclusion orders are not commonly used by the local courts as part of apprehended domestic violence orders. Exclusion orders would enable women and children in need of protection to remain in their home.

Barriers to accessing legal assistance (Chapter 4)

On a day to day basis, homeless people have many immediate needs: finding accommodation, getting food or money, caring for family. These needs tend to take precedence over their legal issues. In addition, legal issues can remain unaddressed because people have limited resources, feelings of despair or hopelessness, mental health or addiction issues, poor literacy or minimal education and a fear of disclosing this, a lack of knowledge of legal options, and a feeling that the law would never work in their interests. Services report that when homeless people finally do contact a legal service (if at all), the issue has usually already reached crisis point: the eviction is imminent; their benefits have been cut off; the court case is tomorrow. In some cases it may be too late to resolve the issue (e.g. the limitation period may have expired) or the issue has become more complex and difficult to address.

The multiple, urgent and interrelated legal problems of homeless people, together with the barriers they face in addressing these issues, have significant implications for the nature and type of legal service delivery that is appropriate for homeless people in NSW.

Legal assistance for homeless people (Chapter 6)

Legal assistance includes the provision of plain language legal information, legal advice, initial legal assistance by a lawyer, and legal representation. The primary legal assistance services for disadvantaged people in NSW, including homeless people, are the Legal Aid Commission of NSW (Legal Aid NSW), community legal centres and Aboriginal and Torres Strait Islander Legal Services. It is argued in this report that, given the diversity within the homeless population, the NSW telephone advice and referral service, LawAccess, also has a significant role to play in providing legal information and advice and connecting homeless people with face-to-face legal assistance services.

In addition to these general legal services are several specialist legal services and clinics for homeless people, all of which are pro-bono or volunteer services. These include the Shopfront Youth Legal Centre, the Legal Counselling Referral Centre, the legal clinics at Exodus and Lou’s Place and the NSW Public Interest Advocacy Centre/Public Interest Law Clearing House Homeless Person’s Legal Service. All of these services are located in metropolitan Sydney, mostly in inner-city areas.

Features of legal assistance services that increase the capacity of the services to support homeless clients include:

being located in or accessible from places where homeless people go. This may include a clinic in a welfare agency or legal outreach to a community health facility or a rural town

having staff who are skilled in communicating with people with special needs and who appreciate the complex issues their clients face

allowing for longer appointment times

having the capacity to provide the same lawyer for the duration of the matter

providing timely legal assistance

having the capacity to address or coordinate a response to a range of legal issues

having the capacity to coordinate legal support with the provision of non-legal services (e.g. caseworker support, housing and accommodation services, alcohol and other drug treatment)

assisting and empowering clients to address their legal rights.

Homeless people also benefit when legal assistance is provided as soon as possible after the legal issue has arisen, before it has reached crisis point and affected other areas of their lives.

To varying degrees, the homeless person’s legal services share many of the above characteristics. However, while they offer a very valuable model of legal service delivery, they should not be considered as the main source of legal assistance to homeless people living throughout NSW. First, each of these services support a fairly defined client group (e.g. users of a particular service, young people). Second, pro bono services such as these can only operate where there is the private sector capacity in the geographical areas where there is need. Thus, these services tend not to reach homeless people living in rural and regional areas. Third, nearly all are pro bono part-time or sessional services.6 Finally, the level of assistance that can be offered by any one service tends to be limited by its resources or the type of law that it has expertise in (e.g. civil law).

A structural feature of legal service delivery in NSW that presents difficulties for homeless and other disadvantaged people is that different legal issues tend to be separately dealt with by different legal services or practitioners. For instance, a duty lawyer may assist in a criminal matter, a grant of legal aid may be provided for a family law issue, a community legal centre may assist with a debt matter and the Chamber Magistrate, the police or the Women’s Domestic Violence Court Assistance Scheme may assist with an apprehended violence order. This separation of legal service delivery is in contrast to the multiple and interrelated nature of the legal and other issues faced by homeless clients. Not only must a homeless person potentially access a number of different legal assistance services, but the legal services provided are not likely to be coordinated to address the complex situations they are facing. Thus, a system that offers discrete legal services for different issues, and lacks coordination between these services, presents a number of barriers for homeless people trying to effectively address their legal needs.

In addition, legal services traditionally work outside the networks of other human services such as community services, housing and welfare agencies. As stated above, the legal and social issues of homeless people are usually intertwined. The separation of legal services from other human services, and the partitioning of legal matters within the legal aid sector, makes it difficult to take a holistic ‘case management’ approach to clients. A ‘case management’ approach involves addressing a client’s many complex needs as a package. To facilitate this, closer links need to be made within and between different legal services providers and with other human services in local areas throughout NSW.

Non-legal assistance in legal processes (Chapter 7)

A few of the homeless participants in this study said that if they had a legal problem, they would go directly to Legal Aid or to another legal service with which they were familiar. However, many homeless people have indicated in this and other studies that they turn to non-legal services or workers as a first point of contact when they have a legal problem.

Homeless person’s services, particularly SAAP services, are a key link between people experiencing homelessness and legal assistance. As well as providing food, shelter and medical attention, some of these agencies provide advocacy, legal information, advice and referral services. The data collected for this report suggests that caseworkers and social service providers play a vital role in assisting homeless clients to identify their legal issues, obtain legal assistance, engage in legal processes and manage their legal outcomes.

However, some homeless people are isolated from these services. In recognition of this, this report covers:

the range of other networks accessed by people at different stages of homelessness: when they first become homeless (e.g. family, schools, health services) and as later they become entrenched in homelessness (e.g. Centrelink, police, alcohol and other drug treatment services), and

the level of legal assistance or referral that could be realistically provided at these points. The value of widely distributing the LawAccess telephone number, as a single contact and referral point for legal services, is also considered in this context.

To adequately support homeless clients with legal problems, non-legal service providers and caseworkers need access to timely legal information, legal advice and relevant legal ‘education’. The aim is not to equip caseworkers to ‘advise’ clients, but to support clients into and through legal processes. Workers also stressed the significant benefits of interagency collaboration for legal service providers, non-legal service providers and, most importantly, their homeless clients. While there are significant resource implications, this is consistent with directions highlighted in current policy and research.

Participation in the legal system (Chapter 8)

Homeless people face many barriers that prevent them from initiating and participating effectively in the legal process. Stakeholders and interviewees reported that even when homeless people are compelled to participate in a legal process (such as in a criminal matter), there are obstacles preventing them from making it to court and achieving the best possible outcome. These barriers and the reasons that homeless people find them an obstacle include:

a fear and lack of confidence in the legal system: people lack faith that the legal system can deliver favourable outcomes to people in their situation

a lack of awareness of their legal rights, options for legal redress and which legal process to follow. This extends to people not being aware of the right or process to appeal decisions made by government departments such as Centrelink and the Department of Housing. This can be exacerbated for people with a mental illness or other cognitive impairment

no stable address or contact details at which to receive notification of court dates. This is a particular issue in relation to criminal matters. Not having a stable address can also reduce the prospect of a person being granted bail

the complexity of legal processes, which can be multi-tiered, involve several agencies and be lengthy (e.g. the fine enforcement system and the social security review process). Such processes are difficult for homeless people to negotiate and to see through to their conclusion

the formality of legal proceedings, which homeless people report finding intimidating

the reliance in legal processes on complex written documentation and applications. This is particularly problematic for the homeless population, which includes people with limited education, poor literacy and comprehension

the cost and limited availability of legal representation for homeless people, who have few financial resources.

Non-legal workers and advocates, together with the legal assistance services detailed above, all assist homeless people to overcome these barriers. In addition, some legal processes, such as those of the Social Security Appeals Tribunal, the Housing Appeals Committee and the NSW Ombudsman, provide more flexible methods of service delivery, which may increase the accessibility of their processes to homeless people.

In many instances, by the time a homeless person gets to court or a tribunal, they have reached a point of crisis. Strategies based upon notions of therapeutic jurisprudence appear to recognise this, and try to use the law and legal process as a point of intervention to address the social and legal issues which exacerbate homelessness. The Red Hook Community Justice Center (New York), the California Homeless Courts, the NSW Drug Courts and the Magistrates Early Referral into Treatment program are all examples of the therapeutic jurisprudence approach. Another example, which has a more direct focus on homeless people in Australia, is the Special Circumstances List at the Magistrates Court of Victoria. This program links people appearing before the court back to social services, in order to address their legal and social needs at the one time. This is factored into the court outcome for the defendant.

Conclusion (Chapter 9)

Homelessness is often indicative of complex legal and other needs. Things have gone astray, safety nets have failed. People have lost their accommodation or are caught in marginal accommodation; they commonly have debts, are dealing with family law issues, been victims of crime, accumulated fines and/or are facing criminal charges. The legal system does not always work in their favour.

When homeless, people are commonly too preoccupied coping with immediate issues, such as getting accommodation, to deal with their complex legal problems. Mental health and other disabilities, cynicism about the law, poor literacy and limited resources also contribute to a situation where legal issues are left to compound, spiralling people into or further entrenching them in homelessness. Ideally, legal service provision to homeless people needs to recognise this situation and be accessible to people from the diverse places that they frequent, have the time and skills to assess the total legal needs of the clients, and form part of a coordinated response to those needs.

As legal service delivery is currently structured in NSW, a challenge is to move from single problem focused approaches to more client focused approaches. A second issue is for legal services to be included and coordinated with other human services, such as housing, health and community services, in both the planning and delivery of services to address homelessness in NSW.

The Access to Justice and Legal Needs research program is described in the Foreword of this report.